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Defending Terrorists: A Legal Challenge Like No Other

Wednesday, June 16, 2010

Accused Times Square bomber Faisal Shahzad has delayed his second court appearance to give his defense lawyers more time to negotiate. These attorneys are part of a defense bar in the Southern District of New York helping to define new law in the modern era of terrorism. Most of the lawyers in this bar are court-appointed, and they’re used to taking on cases that are hard to win. They defend rapists, murderers, organized crime bosses and drug dealers. But they say that when it comes to terrorism cases, they confront challenges they never see anywhere else.

David Ruhnke represents a man named Syed Hashmi. A week ago, Hashmi was sentenced to 15 years in prison for trying to help someone deliver waterproof socks, ponchos and sleeping bags to Al Qaeda. He’s already been in solitary confinement for nearly three years.

Standing outside the Metropolitan Correctional Center in Manhattan, a towering brown complex next to the federal courthouse, Ruhnke points at “10-South” -– the most isolated, locked-down floor of the prison, where Hashmi is kept. Ruhnke has spent more than 30 years trying to keep some of the most violent criminals off death row. But he says terrorism cases are the absolute hardest because the government takes every factor that causes an unequal playing field against defense lawyers, and magnifies those factors to the maximum degree in terrorism cases.

“To the extent that they throw a lot of resources at any case, that’s tenfold when it comes to terrorism,” Ruhnke says.

Ruhnke is one of the best-known terrorism lawyers in the country. He represented one of the men charged with the U.S. embassy bombings in Kenya and Tanzania, and served as an advisor for the defense of one the 9/11 detainees at Guantanamo. Ruhnke says in terrorism cases, he runs up against more obstacles than anywhere else. To begin with, just meeting a client in the same room often isn’t allowed. When he visits Hashmi here, he has to peer at him through a thick high-security screen that offers a distorted, pixilated image of his client.

“It feels more like a solid piece of metal than it does like a screen because the holes are small and the metal is big,” Ruhnke says.

That means he can hardly make eye contact, which has made it really hard to get to know his client. It’s a huge handicap, he says, because people assume from the start in these cases that the defendants are terrorists. So it’s up to him to turn these clients into living, breathing human beings in front a jury one day.

David Ruhnke, one of the top federal death penalty lawyers in the country. He advised military lawyers defending Ramzi Bin al-Shibh before the military commission at Guantanamo. Bin al-Shibh is one of the five 9/11 detainees.

But at least Ruhnke gets to see his client. Some defense lawyers have to wait years for their first visit.

Andy Patel couldn’t see his client Jose Padilla for almost two years after his arrest in 2002. Padilla, a U.S. citizen, was declared an enemy combatant for allegedly planning a radioactive dirty bomb attack.

“Padilla could not speak to anybody,” says Patel. “I don’t say this with any great pride, but my real achievement for Mr. Padilla was that I got him indicted. He was held without being charged. That was something we thought went out when the Magna Carta got signed.”

Padilla, like many terror suspects, faced extra security measures while in solitary confinement. And these measures create another unique problem for defense lawyers. Sometimes they have to spend all their time fighting about the confinement conditions of their clients -– getting them a toothbrush, a dentist visit, a comfortable chair or another visit from a family member. The time drained in managing these issues is time these lawyers desperately need to spend on the rest of the case. They’re going up against a formidable opponent that has substantial advantages when bringing these cases.

“Yes, the U.S. government has a great deal of resources and they put them to use in terrorism cases,” says Eric Bruce, who spent 10 years as a counterterrorism prosecutor in Manhattan. Bruce says when prosecuting terrorism became the top priority of the U.S. Attorney’s Office, the government threw more manpower and money into winning these cases.

“So they’re going to leave no stone unturned, they’re going to talk to every witness they possibly can, and gather evidence from every corner of the world,” says Bruce.

That’s easier when you have FBI and CIA agents at your disposal, as well as the cooperation of foreign governments to give you access to documents and witnesses. In contrast, defense lawyers like Ruhnke have to cobble together their own informal networks of investigators and experts to find evidence overseas. Sometimes the lawyers themselves go at it alone in a foreign country. Ruhnke remembers arriving at a dusty court clerk’s office in Tanzania when he was working on the embassy bombings case and immediately getting hit up for a bribe.

“I think it’s called an ‘inconvenience fee,’” says Ruhnke, laughing softly under his breath. “You know, that’s just not a common experience in the United States. You don’t go to a courthouse and expect to be held up for a gratuity to get a public document.”

Andy Patel in his office sitting beneath a courtroom sketch of himself delivering an oral argument in a federal appeals court on behalf of his client Jose Padilla. (Photo by Stephen Nessen)

Documents are what eats up all of Ruhnke’s time in these cases. He walks me into his office, a cozy room full of family photos. Sheets of paper litter the floor.

“Although this doesn’t look organized,” says Ruhnke, smiling at the floor, “all these papers spread out all over the floor have a meaning and a purpose.”

During a large terror case, Ruhnke’s office would be stacked to the brim with boxes of documents. The sheer volume of paper presents another special problem for defense lawyers. Both sides might have to review more than a million pieces of paper –- pages full of emails, FBI reports and transcripts of intercepted phone conversations spanning years, 24 hours a day. In terror cases, prosecutors will always have more lawyers and more staff to comb through all this. And they’ll usually have a head start. Ruhnke says often, the government has read through these documents for years before they even bring charges. So once the defense lawyers enter the picture, they have to digest these pages at breakneck speed.

“And now you have to make sense out of them,” Ruhnke says, “and there’s a document you can look at that means nothing, until 5,000 documents later, you say, ‘Oh, this links back to something I saw two weeks ago. I wonder where that is.’”

But then let’s say that document is classified. That means he can only read it again by heading back into a windowless secret room at the courthouse, where every classified document is behind a combination lock. Nothing can be photocopied. Not even his notepad can leave the room. The only thing he can take with him is his memory.

Joshua Dratel estimates he’s represented more than 30 terror suspects in his three decades of defense practice. He was the first civilian lawyer at Guantanamo when he represented David Hicks, the Australian who was named an enemy combatant after his 2001 capture in Afghanistan.

Joshua Dratel represented one of the men charged with the 1998 U.S. embassy bombings in Africa. And he says relying on memory is especially tough when the documents are full of foreign names.

“If you look at the embassy bombings indictment,” Dratel says, “you go ahead and tell me how long you think it would take you to be familiar with all those names and the aliases so that if you read a document later, you would know who they were talking about every time.”

In that case, 21 men were charged -- Abdullah Ahmed Abdullah, Khalfan Khamis Mohamed, Wadih el Hage and Mamdouh Mahmud Salim, just to name a few. Dratel says many of these men had four or five aliases. Memorizing all their names was a grueling exercise.

So why does Dratel take on these headaches? He says there’s a simple reason: People call terror prosecutions a “national security” priority, but he says there are two ways to look at what it means to be secure.

“There’s physical security, which is other people’s jobs, and then the security of values and ideals and principles that we live under as a society,” says Dratel, “and someone has to defend those. And that’s my job."

I asked him, would he even represent Khalid Sheikh Mohammed? And he said yes, without a doubt. But he said he would have to turn down that appointment. He’s already represented so many related terrorists, there would just be too many conflicts of interest.

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Ailsa Chang is an award-winning journalist who covers criminal justice, terrorism and the courts for WNYC. She found her way into public radio after practicing law for five years, and can definitely say that walking the streets of New York City with a microphone is a lot more fun than being holed up in the office writing letters to opposing counsel.

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